Powell v. State of Nevada ( 2021 )

UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 RICHARD POWELL, Case No. 2:20-cv-00730-KJD-DJA 5 Plaintiff, ORDER v. 6 STATE OF NEVADA, et al., 7 Defendants. 8 9 Plaintiff, who is incarcerated in the custody of the Nevada Department of 10 Corrections (“NDOC”), files a motion for reconsideration under Federal Rule of Civil 11 Procedure 60(b) on this Court’s screening order dismissing the first amended complaint 12 (“FAC”) in its entirety with prejudice and closing the case. (ECF Nos. 9, 11). The Court 13 dismissed the FAC because “Plaintiff once again . . . failed to sufficiently identify a group 14 of individuals that he was similarly situated to that the caseworkers purposefully treated 15 differently” for his Fourteenth Amendment equal protection claim. (ECF No. 9 at 5). 16 A party can seek reconsideration under Federal Rule of Civil Procedure 60(b). Fed. 17 R. Civ. P. 60(b). “Reconsideration is appropriate if the district court (1) is presented with 18 newly discovered evidence, (2) committed clear error or the initial decision was manifestly 19 unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, 20 Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A motion for 21 reconsideration “may not be used to raise arguments or present evidence for the first time 22 when they could reasonably have been raised earlier in the litigation.” Carroll v. Nakatani, 23 342 F.3d 934, 945 (9th Cir. 2003). 24 In the motion for reconsideration, Plaintiff reiterates the allegations in his FAC but 25 also argues that he does state a colorable equal protection claim because he may “in fact 26 be the first individual to ‘sound the alarm’ in this situation” and that he has a “novel” claim. 27 (ECF No. 11 at 11). Plaintiff asserts that this is why he cannot identify a similarly situated 28 group. (Id.) 1 The Court denies the motion for reconsideration (ECF No. 11) because the Court 2 || did not commit clear error in its screening order. Plaintiff, who is attempting to state an 3 || equal protection claim based on being purposefully treated differently than similarly 4 || situated individuals without any rational basis, cannot allege an equal protection claim if 5 || he is not being treated differently from anyone else. Although the law recognizes a “class 6 || of one” theory with respect to equal protection, that claim still requires Plaintiff to identify 7 || a group that he is similarly situated to and being treated differently from. See Vill. of 8 || Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (holding that “[oJur cases have 9 || recognized successful equal protection claims brought by a ‘class of one,’ where the 10 || plaintiff alleges that she has been intentionally treated differently from others similarly 11 || situated and that there is no rational basis for the difference in treatment’). Because 12 || Plaintiff cannot identify a similarly situated group that he is being treated differently from, 13 || he cannot state a colorable equal protection claim. 14 IT IS ORDERED that the motion for reconsideration (ECF No. 11) is denied. 15 16 DATED THIS 22nd day of December 2021. 17 | | CS 18 Sa 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 95